The phrase 'any other arbitrary ground', introduced into section 6(1) of the Employment Equity Act (EEA) in 2014, has been the subject of debate for the past decade.

It took ten years, but the debate has finally been settled: ‘any other arbitrary ground’ under the EEA is afforded a narrow interpretation. This is correct, as the wide approach trivialises discrimination and unnecessarily raises suspicion about valid forms of differentiation.

What we learned, is as follows: the ground for alleged discrimination must be identified. Where this is an arbitrary/analogous ground, the ground must share the characteristics of the listed grounds. This is the case where the ground affects or has the potential to affect the inherent human dignity of a person in a comparably serious manner as the listed grounds. These are personal characteristics unique to the intimate dimensions of people as human beings.

Grounds that do not share these characteristics are apparently neutral grounds. They will not support findings of direct discrimination, but they may underlie claims for unfair indirect discrimination. Here the evidence is critical – it must be shown that the apparently neutral ground disproportionately affects members of a protected group. Assumptions and stereotypes do not help. What is needed is a comparison of the proportions, not mere numbers.

In many of the equal pay cases where the ground for alleged discrimination was an arbitrary ground, the differentiation was introduced by a collective agreement. Collective agreements are powerful tools to regulate industrial relations and terms and conditions of employment. They are no defence to discrimination on the listed grounds or arbitrary grounds properly understood. But they may justify differential treatment where the differentiating ground is not a prohibited ground; and they may justify differential treatment where the complainants and the comparators do not perform the same or similar work, or work of equal value.

Lastly, workplace rules that infringe employees’ Constitutional rights, especially the right to privacy and human dignity, may be open to challenge. Overbroad, blanket rules without due regard for the individual circumstances and rights of workers expose employers to risk.

Written by Talita Laubscher, Employment and Benefits partner, Bowmans